Wis. Bell, Inc. v. Labor & Indus. Review Comm'n

• Decision Date: 26 June 2018
• Docket Number: No. 2016AP355,2016AP355
• Citation: 914 N.W.2d 1,2018 WI 76,382 Wis. 2d 624
• Parties: WISCONSIN BELL, INC., Petitioner-Appellant-Petitioner, v. LABOR AND INDUSTRY REVIEW COMMISSION and Charles E. Carlson, Respondents-Respondents.
• Court: Wisconsin Supreme Court

382 Wis.2d 624

914 N.W.2d 1

2018 WI 76

WISCONSIN BELL, INC., Petitioner-Appellant-Petitioner,

v.LABOR AND INDUSTRY REVIEW COMMISSION and Charles E. Carlson, Respondents-Respondents.

No. 2016AP355

Supreme Court of Wisconsin.

Oral Argument: December 1, 2017

Opinion Filed: June 26, 2018

As Amended on Denial of Reconsideration September 6, 2018

For the petitioner-appellant-petitioner, there were briefs filed by Julia S. Arnold, Laura A. Lindner, Casey M. Kaiser, and Littler Mendelson, P.C., Milwaukee.There was an oral argument by Laura A. Linder.

For the respondent-respondent, Labor and Industry Review Commission, there was a brief filed by Jeffrey J. Shampo, John L. Brown, and Wisconsin Labor and Industry Review Commission, Madison.There was an oral argument by John L. Brown and Jeffrey J. Shampo.

For the respondent-respondent, Charles E. Carlson, There was a brief filed by Robert M. Mihelich and Law Offices of Robert M. Mihelich, New Berlin.There was an oral argument by Robert M. Mihelich.

There was an amicus curiae brief filed on behalf of Wisconsin Manufacturers & Commerce by Timothy G. Costello, Mark A. Johnson, and Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Milwaukee.

There was an amicus curiae brief filed on behalf of Disability Rights Wisconsin and the Survival Coalition of Wisconsin by Monica Murphy and Disability Rights Wisconsin, Milwaukee.

There was an amicus curiae brief filed on behalf of Wisconsin Employment Lawyers Association by Rebecca L. Salawdeh and Salawdeh Law Office, LLC, Wauwatosa, with whom on the brief was Caitlin M. Madden and Hawks Quindel, S.C., Madison.

DANIEL KELLY, J.

¶1Charles E. Carlson says Wisconsin Bell, Inc. intentionally discriminated against him when it terminated his employment because of his disability.Using the "inference method" of finding discriminatory intent, LIRC agreed and concluded that Wisconsin Bell violated the Wisconsin Fair Employment Act ("WFEA").SeeWis. Stat. ch. 111, subchapter II (2015-16).¹

¶2We granted Wisconsin Bell's petition for review to determine whether LIRC's version of the "inference method" impermissibly allows imposition of WFEA liability without proof of discriminatory intent, and if so, whether that is consistent with the requirements of Wis. Stat. § 111.322(1).²Because resolving that issue implicates the authoritativeness of an administrative agency's interpretation and application of a statute, we asked the parties to also address this issue: "Does the practice of deferring to agency interpretations of statutes comport with Article VII, Section 2 of the Wisconsin Constitution, which vests the judicial power in the unified court system?"

¶3We conclude that LIRC's version of the "inference method" is inconsistent with Wis. Stat. § 111.322(1) because it excuses the employee from his burden of proving discriminatory intent.We also conclude that the record lacks any substantial evidence that Wisconsin Bell terminated Mr. Carlson's employment because of his disability.

¶4We heard arguments in this case on the same day we heard Tetra Tech EC, Inc. v. DOR, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21.There, we decided to end our practice of deferring to administrative agencies' conclusions of law.Id., ¶ 3.However, we also said that, pursuant to Wis. Stat. § 227.57(10), we will give "due weight" to an administrative agency's experience, technical competence, and specialized knowledge as we consider its arguments.Tetra Tech EC, Inc., 382 Wis. 2d 496, ¶ 3, 914 N.W.2d 21.Our Tetra Tech EC, Inc. opinion contains our analysis of the issue, which we incorporate and apply here.

I.BACKGROUND

A.Mr. Carlson's Disability

¶5 Mr. Carlson suffers from bipolar I disorder, a mental illness that can affect an individual physically, socially, and intellectually.³Symptoms of bipolar disorder include, but are not limited to, irritability, racing thoughts, and impulsive behaviors.Bipolar symptoms can ebb and flow, and both internal and external conditions such as stress, changes in environment, and conversations can trigger symptoms.Bipolar disorder is primarily treated with medication and psychotherapy, and during the relevant time period, Mr. Carlson was receiving treatment from psychotherapist Edward L. Cohen, LCSW, who began treating him in 1997, and psychiatrist Mark Siegel, M.D., who began treating him in 2002.

¶6 Mr. Carlson can recognize when he is having what he refers to as a "bipolar episode" or "breakthrough episode."According to Mr. Cohen, Mr. Carlson's reference to having one of these "episodes" refers to a short time period in which he experiences symptoms of mania, which can include racing thoughts, impulsive behaviors, disregard for consequences, or symptoms of depression.Through the course of his treatment, Mr. Carlson has learned various coping techniques he can use to address his symptoms when they arise.These coping techniques include going to a separate room without distractions, using deep breathing exercises, and communicating with others for support.

B.Mr. Carlson's Wisconsin Bell Employment History

¶7 Mr. Carlson was a Wisconsin Bell employee for approximately 25 years prior to his termination in May 2011.⁴In his last position with the company he served as a Technical Support Representative II ("TSR") at the U-verse Tier II call center.The terms of Mr. Carlson's position were governed by a Collective Bargaining Agreement ("CBA") between Wisconsin Bell and the Communication Workers of America Local 4603 (the "Union").

¶8 As a TSR, Mr. Carlson worked with customers and field technicians to resolve technical issues related to Wisconsin Bell's "U-verse" telephone, internet, and television services.TSRs generally received calls based on their availability and could control receipt of calls by making themselves unavailable by entering certain call-blocking codes—such as for meal and rest breaks, short health breaks (such as for using the restroom), and for approved training and staff meetings—into an automated phone system.When call volume was high, the call center would declare a "Code Red" status, which meant that all TSRs were expected to be available to take calls.Wisconsin Bell's Office Rules stated that inappropriate use of call-blocking codes to avoid taking customer calls could result in immediate termination.

¶9 TSRs also had access to an internal instant messaging system referred to as "Q-chat," which allowed TSRs to communicate with technicians and co-workers.Although Q-chat was primarily meant to be used for business purposes, TSRs occasionally used it for personal reasons such as making lunch plans with other employees; however, TSRs were subject to discipline if personal use of Q-chat became disruptive, excessive, or interfered with customer service.

1.Mr. Carlson's 2010 Suspension

¶10 On February 18, 2010, Jeannette Weber, a Wisconsin Bell Operations Manager, was remotely reviewing TSRs, including Mr. Carlson, for quality assurance purposes.While doing so, she noticed Mr. Carlson had been in the "call wrap" status—a post-call code that allowed a TSR to briefly make himself unavailable for incoming calls in order to document interactions from the prior call—for approximately 20 minutes.After questioning Mr. Carlson about the length of his "call wrap" status, Mr. Carlson opened his line for incoming calls.Unbeknownst to him, Ms. Weber continued to observe him remotely, and over the next ten minutes, she observed Mr. Carlson deliberately hang up on at least eight customer calls.⁵Ms. Weber informed Jason Carl, the call center's top manager, about Mr. Carlson's actions, and Mr. Carl thereafter suspended Mr. Carlson pending termination for customer mistreatment and call avoidance.

¶11 Mr. Carlson's Union representative requested a review board hearing to challenge the suspension.At the hearing on March 4, 2010, Mr. Carlson explained that he disconnected the calls because he was upset that Ms. Weber had questioned the length of his "call wrap" status.He also presented letters from Mr. Cohen and Dr. Siegel, which described his disability and its symptoms in general terms.Dr. Siegel's letter (dated March 1, 2010) indicated that it was prepared at Mr. Carlson's request and explained that Mr. Carlson suffered from "bipolar disorder-depressed type," that "[b]ipolar disorder is a condition characterized by extremes of mood that could manifest in a significant depression with or without problems associated with anxiety and irritability[,]" and that with bipolar disorder, "[e]xtremes of moods can occur rather quickly and [are] often triggered by relatively minor frustrations."Mr. Cohen's letter (dated February 24, 2010) likewise indicated it had been prepared for the review board hearing and stated that Mr. Cohen was seeing Mr. Carlson for individual psychotherapy services for dysthymia,⁶ major depressive disorder-recurrent, and bipolar disorder.Neither letter drew a connection between Mr. Carlson's bipolar disorder and his actions on February 18, 2010.Prior to receiving these letters at the hearing, Mr. Carl, the ultimate decision-maker as to whether to terminate Mr. Carlson's employment, was unaware that Mr. Carlson suffered from bipolar disorder.

¶12 Ultimately, Mr. Carlson received a 50-day suspension without pay.Wisconsin Bell informed Mr. Carlson that if he needed an accommodation for his condition in the future, he should request one.As a condition of his return to work, Mr. Carlson was required to sign a "last chance agreement."This agreement was in effect from May 1, 2010, through April 30, 2011, and it detailed specific circumstances in which Wisconsin Bell would have just cause to terminate Mr. Carlson's employment, including the following:

Mr. Carlson understands that in the future, if it is deemed that he has another Customer Care Issue be it Customer Care, Customer Mistreat, disconnection of any incoming or outgoing customer call or any underlying issue that directly impacts the care of one of our customers for

...